Bird’s Critics Take Aim at Reynoso and Grodin : Risky Strategy Could Result in a Conservative Majority on High Court for 1st Time in 40 Years

With the renewal of their $4-million campaign, critics of California Chief Justice Rose Elizabeth Bird have stepped up their attacks on two other members of the state Supreme Court in a risky strategy that could lead to a conservative majority on the court for the first time in more than 40 years.

As public opinion polls continue to register a steady slide in Bird’s popularity, her foes have announced a plan to devote more of their attention to Associate Justices Joseph R. Grodin and Cruz Reynoso, who have concurred with Bird on a majority of the court’s death penalty reversals.

“In the past, we have concentrated on Bird. Now, we want to make sure that the public is aware that it takes more than one vote to reverse a death penalty, and that Grodin and Reynoso share that responsibility with Bird,” said Janet Byers, spokeswoman for Crime Victims for Court Reform, the group spearheading the drive against the justices.

Could Add a New Twist

A high-powered campaign against the two associate justices could put a new twist on the election by threatening the balance of power on the court in a way that concentrating on Bird did not do.

If either Grodin or Reynoso loses along with Bird, the state’s next governor will have the opportunity to create a court majority. Such a historic realignment of judicial power would seem likely if the current front-runner in the governor’s race, incumbent Republican George Deukmejian, is reelected.

In his only two appointments to the court, Deukmejian has appointed conservatives Malcolm M. Lucas and Edward A. Panelli.

Deukmejian opposes Bird’s reelection, but he has not stated a position on Grodin or Reynoso. While he was attorney general, Deukmejian opposed Reynoso’s appointment but supported Grodin’s.

Some court critics argue that going after Grodin and Reynoso is not a good idea because it could rally court defenders in a way that Bird, up to now, has failed to do.

“It worries me,” said one lawyer who has been working with Crime Victims for Court Reform. “There are a lot of people in this state willing to see Rose Bird go down the drain who will not stand still for an overtly political assault on the court,” said the lawyer, who asked not to be identified.

Control of the Court

Throughout the campaign, defenders of the court have argued that conservatives were exploiting the issue of the death penalty as a means of gaining control of the court. In a recent speech, Bird said that the drive to unseat her is part of a strategy by special interests who are philosophically aligned with the governor to gain control of the court.

“I really think the question is whether or not in your election process you want to have an institution that is no different than the legislative or executive branches, whether it (the court) will simply mirror whoever happens to have power at the moment,” Bird told a group of newspaper editors during a recent speech in Orange County.

Opponents of the current court say that they would like to make room for a new majority, but not necessarily one appointed by a Republican governor.

“Our feeling is that Bradley would appoint a more balanced court than the one we have now,” Byers said, referring to Los Angeles Mayor Tom Bradley, the Democratic nominee for governor.

Bradley, a former policeman who has said he favors the death penalty, has refused to take a position on the reelection of the justices.

The new offensive against Grodin and Reynoso got off to a shaky start last week with a press conference held by Crime Victims for Court Reform in which the court’s role in two death penalty cases was not accurately described.

Some Omissions

The press conference was held in South-Central Los Angeles at the location of a 1980 double murder. Last year, the Supreme Court overturned the death sentence of the man convicted of those murders and, on the same day, reversed death sentences of three other defendants convicted of murdering six other people.

However, speakers at the press conference failed to say that Grodin had dissented from one of the reversals. And they neglected to point out that in another case all of the justices, including the only Deukmejian appointee on the bench at the time, joined Bird, Grodin and Reynoso in voting to reverse the death penalty.

Asked about the omissions, the main speaker, Assemblyman Ross Johnson (R-La Habra), defended what was said, arguing that it underscored the fact that Grodin and Reynoso have concurred with the majority of the 57 death penalties reversed since Bird was appointed chief justice in 1977. Bird has never voted to affirm a death penalty.

However, Byers admitted there were “miscues” at the press conference and said that Crime Victims for Court Reform was at work on a “position paper” that would carefully detail the role of Grodin and Reynoso in death penalty reversals.

A fourth liberal on the seven-member court, Justice Stanley Mosk, has not announced whether he will run for reelection and, so far, has not been a target of court critics.

Mosk, who has until the filing deadline of Aug. 16 to decide whether he will run again, could still figure prominently in the election. If he announces his resignation before the election, there would be less incentive by court critics to campaign against Grodin or Reynoso.

Pivotal Role

“Mosk could play a pivotal role,” Byers said. “If he announces his resignation, it would weaken the case against Grodin or Reynoso.”

Mosk’s departure, combined with Bird’s defeat, would create the two vacancies needed to fashion a new majority.

But if Mosk chooses to run again, Byers said, Crime Victims for Court Reform will avoid picking a fight with him, despite his reputation as the grand old man of court liberals.

“He’s had the lengthiest stay and, possibly, is the most highly respected member of the court,” Byers said. “He would have ability to gather more support and more money, maybe more than Bird, but certainly more than either Grodin or Reynoso, who aren’t that well known yet.”

Public opinion polls show that of the six justices scheduled to appear on the November ballot, Mosk has the best chance of being reelected, but the polls also show that Grodin and Reynoso have made a favorable impression on voters. According to the two most recent Los Angeles Times polls, taken in March and May, voters favored the reelection of all the justices on the ballot except Bird.

Both appointed by former Gov. Edmund G. Brown Jr. in 1982, Grodin and Reynoso are relative newcomers to the court who missed the turbulent years immediately following Bird’s arrival in 1977, when resentment over her appointment as the state’s first woman chief justice and resistance to her combative leadership disrupted the court and tarnished its reputation.

Grodin’s Popularity

Grodin’s popularity, in particular, cuts across political and philosophical lines. For example, a group of 30 management and union lawyers, who are usually at odds with one another, are working together on behalf of Grodin, who was a union lawyer before going on the bench.

As campaigners, Grodin and Reynoso have accentuated their differences with Bird by presenting themselves as genial, down-to-earth people who defy political caricature.

Last month, Grodin asked to speak before the California Peace Officers’ Assn., a potentially hostile group of sheriffs and police chiefs who had already come out against Bird.

Unlike Bird, who stresses that the justices set aside their own views when they make decisions from the bench, Grodin readily acknowledged that the justices are influenced by their own beliefs.

“The fact of the matter is that judges bring to their jobs something of their own value systems, their own past and their own outlook on life,” Grodin said. “That is inevitable and it is inevitable that it plays a role in their decisions.”

But as a justice, Grodin said, his voting record is as much like Justice Malcolm M. Lucas’ as it is like Bird’s or Reynoso’s.

Principal Targets

“The chief justice, Justice Reynoso and I, who are the principal targets of the current campaign, vote together on opinions, it is my guess, in less than half the cases that the court decides,” Grodin said. “In fact, I would wager that a close examination of the record would reveal that I voted with Malcolm Lucas as often as I voted with the chief justice.”

Then, Grodin reminded his audience of law enforcement officials that he wrote the majority opinion upholding a key element of the state’s 1982 “victims’ bill of rights,” which had the effect of broadening police powers of search and seizure. He also indicated that, besides voting in favor of five death penalties, he has qualms about the legal reasoning behind a particularly controversial line of death penalty reversals.

In those cases, many involving multiple shootings and other grisly murders, the court overturned death penalties because it said there was not a clear-cut determination of intent to kill. The reversals stemmed from a 1984 case in which a court majority, including Grodin, ruled that a death penalty is subject to reversal if the jury was not instructed by the trial court judge to decide whether the accused killer intended to murder his victim.

However, Grodin, in a dissent written early this year, indicated that he now believes that evidence of intent in a capital murder case can be so overwhelming that the jury is faced with the issue regardless of what instructions are given.

Grodin has received one endorsement from a law enforcement organization, the California Correctional Peace Officers Assn., a group that opposes Bird and takes a neutral stand on the other justices up for election. Grodin is still waiting for an official reaction from the group he spoke to in May, the California Peace Officers Assn. Officials of that organization say they will decide in August whether to take a position on Grodin or Reynoso.

Reynoso as Campaigner

As a campaigner, Reynoso repeatedly mentions the one vote he has cast for the death penalty. And he has gained the endorsement of several Latino law enforcement organizations around the state.

Reynoso has not worked as hard as Grodin to project himself as a centrist on the court.

At one of his own fund-raising dinners, Reynoso warmly greeted liberal Assemblyman Tom Hayden (D-Santa Monica). Surrounded by reporters and photographers, Reynoso and Hayden chatted like old friends.

In his speeches, Reynoso likes to tell people that he first became a lawyer, not to make money, but to help poor people and minorities.

“I saw poverty, discrimination, crime and lack of medical attention. That’s why I turned to the law . . . to serve those who are unloved and poor, as well as the loved and the rich.”

Court’s Reputation

Reynoso also reminds his audiences of the state Supreme Court’s reputation as a friend of laborers, injured people, consumers and the environment, although he argues that the court’s opinions are dictated by a proper reading of the laws and not by the philosophies of the justices.

During a speech last month, Reynoso also reinforced the concern of those people who think that an election is not good for the court. While avoiding criticism of the election itself, Reynoso suggested that the campaign is distracting.

“In times past, I would say we thought more about the cases. Now, especially at night or when you are driving someplace, I would say that instead of thinking about cases, you might be thinking about the campaign. This (the campaign) certainly is taking some nervous energy.”

Nevertheless, spokesmen for both Reynoso and Grodin say that the justices are prepared to meet any new challenge posed by their opponents. They report that Reynoso has raised about $400,000 in campaign funds and Grodin about $250,000.